from the evidence-based-policymaking dept

For many years we've criticized copyright policymakers who rely on "faith-based" policymaking. That is, they believe that copyright is inherently "good" and refuse to consider any evidence showing harms from copyright that is too strong, or refuse to concede that there may be better ways to create incentives or to remunerate creators beyond copyright. The idea of actually having evidence-based copyright has long seemed like a pipedream -- and apparently the EU Commission would like to keep it that way. Back in September, we wrote about how the EU Commission spent $400,000 on a study that showed unauthorized downloads had little impact on sales -- and then refused to release the report, recognizing that it would undermine the narrative they were pushing in trying to expand anti-piracy laws.

And, now, another such "buried" report has been discovered. As with the last one, this new report was discovered by Pirate Party EU Parliament Member Julia Reda, though she used the standard EU Freedom of Information process that anyone else could have used. After discovering that last report, she made a request for all copyright related studies that the EU Commission had requested since 2013, even if they were unpublished. That initial request listed out some papers that were still in progress -- including the one that Reda has now released. This study is one that a lot of news publishers almost certainly wished would have never seen the light of day -- which might explain why the EU Commission kept it buried.

The report focuses on the question of news aggregators and what impact they're having on news publishers. As you may recall, publishers around the globe -- but especially in Europe -- have been insisting that aggregators like Google News are somehow responsible for their own business failures, and are demanding that Google pay them for the awful crime of sending them traffic. The fact that these publishers could easily block Google from sending them traffic -- but refuse to do so -- reveals that they really do find that traffic valuable. But they still want payments on top of it, and will continue to demonize Google News and other aggregators until they get it. And, indeed, the EU Commission continues to suggest that forcing aggregators to pay publishers would be a good idea.

But, perhaps not surprisingly, the study that the Commission requested shows the exact opposite of what the publishers claim. Looking at situations in Spain and Germany -- both countries that tried to force Google to pay -- gives some real world evidence that is inconvenient for publishers and those pushing for these kinds of laws:

The available empirical evidence shows that news aggregators have a positive impact on news publishers' advertising revenue.

The research goes through a number of different empirical studies to conclude this. It notes that there are two competing forces, and the empirical question is which force wins out. News publishers insist that aggregators work as a substitute for their sites, while aggregators (and others!) insist that they're complementary, and that news aggregators drive more traffic, which the publishers can then monetize. It then cites a whole bunch of studies presenting empirical evidence that the complementary effects far outweigh the substitution effects. As the paper concludes:

We can conclude from this overview that the studies published so far contain no empirical evidence in support of the substitution hypothesis and thus no evidence that online aggregators have a negative impact on original newspaper publishers' revenue. On the contrary, the evidence shows that aggregators may actually be complements to newspaper websites and may help consumer discover more news and boost the number of visits.

All of this seems like, damn, it would be kind of useful if you were trying to create good copyright policy. But instead the report was completely buried and hidden, while the EU Commission to this day continues to push for policies that insist the substitution effect is stronger than the complementary effect. Even though the evidence that the very same Commission asked for shows that's untrue.

So, once again, it's feeling like evidence-based copyright remains a pipedream. What's unfortunate, though, is that in the past we felt it was a pipedream because no one was willing to do the research. Now it appears it's a pipedream because policymakers, when shown the evidence, will do everything possible to hide it, rather than to use it to create more effective and reasonable copyright laws.

from the give-them-an-inch dept

The road to this story has been paved with absolutely dreadful decisions made in Europe over the past few years. As several courts and governments adopting the general idea that social media sites are somehow responsible for content posted by individual users, they likewise developed the stance that these sites must somehow review and remove "hate speech" — as vague and amorphous a term as there could possibly be. As such, the EU essentially demanded that sites like Twitter and Facebook act as content police for their platforms, with nary a care given to the insurmountable nature of the request, nor the actual moral viability of vicarious assignment of guilt. In what some describe as a no-choice situation, Google, Facebook and Twitter — among others — agreed to an equally vague notice and takedown regime for hate speech in the EU.

Choice or not, it was never going to work. Monitoring and responding to hate speech designations, while affording those accused of hate speech anything resembling a fair and honest review, is laughably beyond these companies' ability. Likewise, whatever those sites were actually able to accomplish in removing truly vile speech from their platforms was never going to be enough for the EU. Now that this door has been opened, rather than these sites standing firm and making the argument for why opening that door was ridiculous, we're too far down the road. It was therefore perfectly predictable that the EU was going to come back at these very same sites with more demands, in this case that these companies fulfill the EU's request for the impossible even faster.

Facebook, Twitter, Microsoft and Google have all pledged to do more. In May 2016, they promised to review a majority of hate speech flagged by users within 24 hours and to remove any illegal content. But the European Commission, EU's top regulator, said Thursday they are still failing to act fast enough. It said it would pass laws allowing the EU to impose punishments on companies that fail to act.

"The situation is not sustainable: in more than 28% of cases, it takes more than one week for online platforms to take down illegal content," said Mariya Gabriel, the EU's top official in charge of the digital economy and society.

Look, maybe I'm the weird one here, but I'm supremely impressed that these sites are able to respond to the vast majority of these takedown requests in under a week. Having only 28% of these requests be honored in a timespan of more than a week surpasses how effective I thought the sites would be at all of this. The question appears to be this: exactly how quickly does the EU want these sites to respond?

Because if a week or so, often less, isn't enough, what will be? You can bet that if these sites got it down to 3 days, the EU would demand it be done in 2. If 2, then 1. If 1? Well, then perhaps internet companies should become proficient in censoring speech the EU doesn't like before it ever appears. That's already being suggested, by the way.

The Commission said it will consider implementing new laws to tackle the problem if the online platforms fail to "take swift action over the coming months." It said it wants the companies to invest more in detecting of hate speech, and work with trusted reviewers who are trained to know what constitutes hate speech.

So much for these social media companies placating the EU. Once they opened that door, it should have been obvious the EU would come barging through it.

from the but-the-truth-is-finally-out-now dept

One of the problems in the debate about the impact of unauthorized downloads on the copyright industry is the paucity of large-scale, rigorous data. That makes it easy for the industry to demand government policies that are not supported by any evidence they are needed or will work. In 2014, the European Commission tried to address that situation by putting out a tender for the following research:

to devise a viable methodology and to subsequently implement it in view of measuring the extent to which unauthorised online consumption of copyrighted materials (music, audiovisual, books and video games) displaces sales of online and offline legal content, gathering comparable systematic data on perceptions, and actual and potential behaviour of consumers in the EU.

The contract was awarded to Ecorys, a "research and consultancy company" based in the Netherlands that has written many similar reports in the past. The value of the contract was a princely €369,871 -- over $400,000. Given that hefty figure, and the fact that this was public money, you might expect the European Commission to have published the results as soon as it received them, which was in May 2015. And yet strangely, it kept them to itself. In order to find out what happened to it, a Freedom of Information (FOI) request was submitted by the Pirate Party MEP, Julia Reda. It's worth reading the to and fro of emails between Reda and the European Commission to get an idea of how unhelpful the latter were on this request. The European Commission has now released the report, with the risible claim that this move has nothing to do with Reda's FOI request, and that it was about to publish it anyway.

The 304-page document (pdf), made available on the netzpolitik.org site, contains all the details of the questions that were put to a total of 30,000 people from Germany, France, Poland, Spain, Sweden, and the UK, their answers, and exhaustive analysis. The summary reveals the key results:

In 2014, on average 51 per cent of the adults and 72 per cent of the minors in the EU have illegally downloaded or streamed any form of creative content, with higher piracy rates in Poland and Spain than in the other four countries of this study. In general, the results do not show robust statistical evidence of displacement of sales by online copyright infringements. That does not necessarily mean that piracy has no effect but only that the statistical analysis does not prove with sufficient reliability that there is an effect. An exception is the displacement of recent top films. The results show a displacement rate of 40 per cent which means that for every ten recent top films watched illegally, four fewer films are consumed legally.

That is, there is zero evidence that unauthorized downloads harmed sales of music, books and games. Indeed, for games, there was evidence that such downloads boosted sales:

the estimated effect of illegal online transactions on sales is positive -- implying that illegal consumption leads to increased legal consumption. This positive effect of illegal downloads and streams on the sales of games may be explained by the industry being successful in converting illegal users to paying users. Tactics used by the industry include, for example, offering gameplay with extra bonuses or extra levels if consumers pay.

The research did find evidence that there was some displacement of sales in the film sector. Another result of the Ecorys work provided an explanation of why that might be:

Overall, the analysis indicates that for films and TV-series current prices are higher than 80 per cent of the illegal downloaders and streamers are willing to pay. For books, music and games prices are at a level broadly corresponding to the willingness to pay of illegal downloaders and streamers. This suggests that a decrease in the price level would not change piracy rates for books, music and games but that prices can have an effect on displacement rates for films and TV-series.

In other words, people turn to unauthorized downloads for films and TV because they feel the street prices are too high. For books, music and games, by contrast, the prices were felt to be fair, and therefore people were happy to pay them. This is exactly what Techdirt has been saying for years -- that the best way to stop unauthorized downloads is to adopt reasonable pricing. A new post on the EDRi site points out something rather noteworthy about the research results concerning video and TV series:

Interestingly, these results concerning the film industry found their way to a publication of an academic paper by Benedikt Hertz and Kamil Kiljański, both members of the chief economist team of the European Commission. Yet the other unpublished results, showing no negative impact of piracy in the music, book and games industry, were not mentioned in the paper. Beyond that, the original study itself is not referred to either.

This seems to substantiate suspicion that the European Commission was hiding the study on purpose and cherry-picked the results they wanted to publish, by choosing only the results which supported their political agenda towards stricter copyright rules.

The European Commission was quite happy to publish partial results that fitted with its agenda, but tried to bury most of its research that showed industry calls for legislation to "tackle" unauthorized downloads were superfluous because there was no evidence of harm. This is typical of the biased and one-sided approach taken by the European Commission in its copyright policy, shown most clearly in its dogged support for the Anti-Counterfeiting Trade Agreement -- and of the tilted playing field that those striving for fair copyright laws must still contend with on a regular basis. Sadly, it's too much to hope that the European Commission's own evidence, gathered at considerable cost to EU taxpayers, will now lead it to take a more rational approach to copyright enforcement, and cause it to drop the harmful and demonstrably unnecessary upload filter it is currently pushing for.

from the thinking-this-through dept

By now, of course, you've probably heard that the EU Commission has fined Google €2.4 billion for antitrust violations, specifically regarding shopping search (there are at least two other investigations going on around antitrust questions involving Android and Adsense). The specific issue leading to this fine is that Google, for years, has been pushing its own comparison shopping results in response to searches on products, and other comparison search vendors feel this is unfair, as users are more likely to just jump to Google's shopping options in the boxes up top -- usually called the "onebox" (for what it's worth, I almost never click on those boxes, in fact, I almost never use Google for product search, preferring other, better, dedicated sites -- but that's a single anecdotal point, while the EU is citing some data it claims supports its position). Anyway, rather than digging all that deep, let's go with three thoughts I had in reading through the EU's announcement (linked above), Google's response and some of the other coverage.

I still don't understand why Google didn't handle this differently starting years ago. Three years ago, we wrote about this in connection to the antitrust fight over "place reviews" where Yelp & TripAdvisor made the fairly compelling (and data-backed) argument that Google users would prefer if the "onebox" were populated using Google's search algorithm, rather than only showing Google's review pages via Google Local/Zagat/whatever it's called. The same thing could apply somewhat to shopping search as well, and pull from other shopping search engines -- and, voila, no more antitrust issue. In that setup, competition in the market rules -- and if Google can produce the best results, it wins. If others can do better, then they win. Seems like a fairly straightforward solution as it would have eased the pressure on Google, and wiped out this kind of fine. Indeed, such a response would even feel more "Googley" in the early-2000's definition of "Googley" where the company seemed much more willing to drive people elsewhere on the web, rather than keep people in.

Even given that first point, I'm still... nervous about having European bureaucrats (or, really, any bureaucrats) telling any company how they can design their webpages. As Wired's Klint Finley points out, once bureaucrats -- who have no idea the realities of designing search results pages, let alone designing any webpages -- start telling websites how they can and cannot design their sites, trouble follows. I know that some are saying (and I've talked about this in the past) that this is just the EU slapping down big American companies for being "big" and "American" but I really think this is a case of EU regulators getting so deep in the weeds and then deciding that Google is too big and that they (the bureaucrats) don't like how its shopping search results work. That kind of meddling in webpages should worry everyone. Yes, you can say that it will only be used against giant companies... but once you open the door to bureaucrats telling you how your webpages can work, they might not stop at just the big ones. Danny Sullivan summed this up nicely:

Next up: EU to decide a search engine offering news, image & local search is somehow a violation of being a "fair" search engine. https://t.co/hUAYAbO6V9

Given all that: will this actually change anything substantial? Even if Google accepts this and doesn't appeal (which it probably will...) it can easily afford the fine. But, more importantly, will this actually help other comparison shopping engines? That's much less clear. That same article (by Rob Pegoraro) has a number of interesting quotes, including a few from Jan Dawson of Jackdaw Research noting that in the market for product searches (as in my anecdotal experience), most don't start at Google:

“Around half of searches for products now start on specific e-commerce sites or apps, especially Amazon in the countries where it operates,” emailed Jackdaw Research principal Jan Dawson.

Dawson also noted: "Although those comparison shopping sites still exist, they're far less relevant today, and even a change to Google’s search engine isn't going to turn that around."

So... if this isn't going to hurt Google and isn't going to help other companies in the market, then... what's the point exactly? Yes, Google could have done things differently, but this doesn't help really.

from the save-the-meme dept

Techdirt has just written about how a report from the European Parliament's "rapporteur" -- basically, the subject lead -- on planned reforms to EU copyright law recommends dumping one of the most stupid ideas in the draft proposals, a link or "snippets" tax. Although that's good news, it shouldn't come as a huge surprise. After all, the idea has already been tried in Germany and Spain, and failed dismally both times. The damage that a link tax would cause to the smooth functioning of the Web is so obvious that the only people refusing to acknowledge that fact are the publishers who have been demanding this new "right" as part of their copyright maximalism. But alongside the ridiculous snippets tax, there's another extremely dangerous idea that the European Commission has slipped into its copyright reform. Article 13 of the published draft (pdf) reads as follows:

Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall, in cooperation with rightholders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers. Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate.

That is, those running online sites where users upload large quantities of material would be obliged to filter all those files to check for copyright material by using some unspecified, possibly magical, "content recognition technologies" that can tell when something is illegal or not. The problems with this are many and deep, as a post on the EDRi site explains:

the proposal of the Commission would require private companies to police the internet, in direct contradiction to two separate European Court rulings. The proposal would eliminate our freedoms to remix, to parody and others, in explicit breach of the EU's obligations contained in the Charter of Fundamental Rights of the EU.

The good news is that Therese Comodini Cachia, the rapporteur who wants to drop the link tax, also has some sensible suggestions for how to fix this "censorship machine":

In the leaked proposed amendments [to the new EU copyright law], Ms Comodini has deleted key aspects of the section of the draft Directive and amended the proposal in a way which would minimise the worst aspects of the censorship machine. Moreover, she has correctly restated the liability rules which exist in current EU legislation (the e-Commerce Directive). She advocates for the licensing agreements that were the ostensible goal of the European Commission in the first place.

However, it would be premature to celebrate this outbreak of good sense. Although it seems quite likely that the European Parliament will agree with the recommendations of its rapporteur here, the European Commission and national governments of the member states may disagree, and still try to keep Article 13 in its current form because of pressure from lobbyists. Ultimately, that would lead to EU negotiations behind closed doors and compromises that could see upload filtering retained with some modifications and perhaps token safeguards.

Fortunately, there is still some time to mobilize public opinion here. Although upload filtering seems an obscure, rather technical issue, it threatens some very fundamental Internet freedoms like remixing and creating parodies. As part of an effort to reach a broader audience, the Dutch Bits of Freedom digital rights group has put together a simple site called "Save the Meme," which encourages EU citizens to contact their MEPs to make sure as many as possible vote against Article 13, sending a strong signal to the European Commission and national governments that it has to go -- just like the link tax.

from the seems-like-a-problem dept

A few weeks ago, we were greatly troubled to see the ridiculous copyright policy come out of the EU Commission. The whole thing seemed like a really bad joke. It was a law basically designed to destroy entrepreneurship and startups on the internet, and to basically forcibly take money from large internet companies and give them to failing legacy media companies that had refused to innovate. It seemed to go against what basically everyone (other than those legacy companies) had been telling the European Commission. And it seemed to directly violate what the European Commission itself had said about its plans. The inclusion of things like forcing any company to install filters, the plans to require specific business models at the regulatory level, and the idea that sites should have to pay those they link to are all ridiculous.

What almost everyone involved in the process made clear, was that this whole thing was driven by one guy: Gunther Oettinger a former tax lawyer who was appointed the European Commissioner for Digital Economy and Society a few years ago, despite the fact that he's not a fan of the internet at all. If you pay any attention at all to EU politics, you may have heard the name Gunther Oettinger quite a bit lately. That's because he got caught making a series of remarks that were bigoted, racist, sexist and homophobic (he hit basically everything). He made fun of the Chinese, using racist terminology. He made fun of women in the government. He mocked gay marriage. He was on quite a roll.

Gunther Oettinger: Everything has been said. There is nothing to apologise for.

Euroactiv's James Crisp: But there is a big scandal.

Oettinger: There is no scandal.

Of course, as more and more publications around the globe started talking about it he finally was forced to release a statement with a carefully worded apology:

I had time to reflect on my speech, and I can now see that the words I used have created bad feelings and may even have hurt people. This was not my intention and I would like to apologise for any remark that was not as respectful as it should have been.

Of course, at this time, Politico has also released a big profile on what they refer to as Oettinger's "strange career." The article notes that this little bigoted outburst is not a surprise and considered no big deal to his supporters -- a columnist from his hometown describes it as "That’s just how our Oetti is," in the same way you brush off your annoying bigot of an uncle at family gatherings with his horrible opinions. Except this bigoted uncle is setting serious policy issues across Europe -- and ones that can have a major, major impact on the internet and freedom of expression, despite an almost ridiculous ignorance of technology -- something he almost seems to take glee in not caring about.

From the article:

Back in 2014, Brussels didn’t have high hopes for him when he shifted from energy to take over the digital economy portfolio. He could be curt, tearing up his notes if he deemed a subject unworthy of his attention. In the often pretentious world of Brussels officialdom, he came across as unintellectual and unserious — more likely to obsess over cars or football than trade deals or European Union directives.

To make matters worse, as a die-hard Luddite, he seemed uniquely unqualified for his new position. His more tech-savvy boss, Commission Vice President for the Digital Single Market Andrus Ansip, was at ease on social media or on the trendiest apps, like Pokemon Go.

Oettinger, as he told the crowd at his now-infamous Hamburg speech last week, preferred an old-fashioned newspaper to Twitter and document printouts to a tablet or iPhone. As he settled into his office, his aides rushed to install a computer and carry away piles of paper stacked precariously on every available surface.

In the 22 months since his appointment, Oettinger has changed little. He continues to express more interest in breakthroughs in the automotive industry than the more abstract areas of his portfolio, such as data flows or ICT standards. His home in Brussels, he told a group of reporters and tech lobbyists recently, is not set up for Wi-Fi — something he attributes to his long hours at the office. At home, he prefers “a nice bottle of Bordeaux” to a broadband connection, he added.

And yet... he's the guy in charge of crafting digital/internet and copyright policy in the EU. How does this make any sense at all? Now, there's something to be said for sometimes having an outsider's view on things, and no one's arguing that he needs to come from the internet industry or anything like that. But Oettinger not only seems to not understand and not care about the internet, but he also seems to have no problem playing political favoritism with old legacy industries where he has friends -- especially industries who have been impacted by innovation and failed to embrace the internet.

While Ansip has struggled to push forward his ambitious agenda centered around breaking down digital barriers, often referred to as geo-blocking, Oettinger has used his negotiating skills to deliver for his allies in industry, like the German publishing sector, a series of high-profile victories.

During the summer, he strong-armed his way into negotiations on boosting European startups, infuriating his more innovation-focused colleagues. Before that, he bulldozed past Vodafone to accept a plan that would keep some power over German copper network cables in the hands of giant Deutsche Telekom.

So we're left with your nutty, bigoted, luddite uncle... and put him effectively in charge of making policy choices that will impact the entire internet, and no one seems to care that he's more focused on delivering favors to his friends in the old, legacy industries that failed to adapt.

from the law-of-unintended-consequences dept

A couple of weeks ago, Techdirt ran through the catalog of horrors that make up the EU's new Copyright Directive proposals, pointing out that they would be a general disaster in their current form. Of course, the misery would not be evenly spread: some would suffer more, some less. Indeed, an earlier open letter to the European Commission from a bunch of tech companies (including Techdirt), published on the Don't Wreck the Net site, pointed out one group who wouldn't have too much of a problem with the changes:

The largest companies have the resources and staff to deal with increased regulations and burdens. Startups do not.

That is, the big online companies can weather more or less anything: it's the smaller ones -- particularly startups -- that will have difficulties. That warning was issued before the details were known, and now Joe McNamee from the European digital rights group EDRi has penned a very similar analysis based on the newly-published plans:

There is a lot of noise in the press and among lobbyists about an alleged hostility of the EU towards big American internet companies. Reality is more nuanced and more surprising -- the policies appear to be hell-bent on giving Google new monopolies, to the detriment of European citizens and European internet companies.

The most astonishing of these policies is the proposal in the new Copyright Directive for mass, preventive filtering of information as it is being uploaded to the internet in Europe -- a policy so restrictive and absurd that even China or Russia would baulk at the notion. An anti-Google measure? Hardly. Google actively lobbied the Vice-President of the European Commission about the alleged virtues of its content identification system ("contentID"), even if they hadn’t expected the Great Firewall of Europe to be the result.

Even if the Copyright Directive manages to pass through the EU legislative system without any changes -- which seems unlikely -- Google would be in a strong position, because it already has the content ID technology in place that will allow it to comply. Although McNamee suggests that as a result Google would be "uniquely placed to license such software to European internet providers," it's more likely that it would keep it for its own exclusive use. However, the US company Audible Magic would doubtless be more than happy to license its widely-used content identification system as an alternative. And irrespective of whether it's based on technology from Google or from Audible Magic, it's hard to see how this outcome helps the European tech industry. Moreover, McNamee is certainly right about the likely outcome of bringing in an insane "ancillary copyright" in the EU, which would require Internet companies to pay a fee to use news snippets:

In Germany, where this policy has already been adopted, Google has the economic muscle to simply refuse to pay and suddenly it is not Google, but the publishers, who have a problem. Publishers put their content online in order for people to view it and to make money from advertising that is on their sites. They need Google News more than Google News needs them. So, the outcome is that everybody pays except Google. The Spanish government came up with a cunning plan, they passed a similar law to the one in Germany, but required Google News to pay. Result: Google News Spain shut down, to the detriment of smaller Spanish news outlets in particular and, again, everyone except Google loses.

The rest of the EDRi post points out other fundamental flaws in the proposed EU Copyright Directive. But the key point is that far from stimulating the European digital economy, the EU's deeply-flawed plans are likely to boost the power and the profits of the largest US Internet companies. That may be good news for them and their shareholders, but it isn't really the European Commission's job.

from the massive-potential-win-for-humanity dept

After the dramatic and largely unexpected victory of the "Brexit" (Britain Exit) camp in the UK -- those who want the country to leave the European Union -- politicians around the world are trying to work out what the implications will be. For the UK, of course, it meant an immediate trashing of the UK pound against the US dollar; for the US, it meant the loss of a reliable ally within the EU camp. As The New York Times puts it:

No country shares Washington's worldview quite the way Britain does, they say; it has long been the United States' most willing security ally, most effective intelligence partner and greatest enthusiast of the free-trade mantras that have been a keystone of America's internationalist approach. And few nations were as willing to put a thumb as firmly on the scales of European debates in ways that benefit the United States.

Now that quiet diplomatic leverage -- including moderating European trade demands and strong-arming nations to contribute more to NATO military missions -- is suddenly diminished.

As that mentions, trade is one area where the UK played a key role for the US, and its departure from the EU will make negotiations for the TAFTA/TTIP deal, now dragging on into their fourth year, even harder, since the UK was one of the main countries pushing for it. The European Commission is worried: after the results of the Brexit vote were known, the EU's commissioner for trade, Cecilia Malmström, called it "A midsummer night's nightmare," (original in Swedish.) However, she also insisted that she would press on regardless:

I am determined to make as much progress as possible in the months to come. This is particularly true for our negotiations with the United States on a Transatlantic Trade and Investment Partnership.

"We certainly lose an important market," said MEP Bernd Lange, the chair of the European Parliament's international trade committee, of the U.K. "In a way, that means losing leverage."

Losing that leverage will make it harder to wring concessions out of the US, which was not particularly keen on offering any even before. The USTR's lukewarm post-Brexit statement hardly gives the EU much hope of the US meeting its main demands:

The importance of trade and investment is indisputable in our relationships with both the European Union and the United Kingdom. The economic and strategic rationale for T-TIP remains strong. We are evaluating the impact of the United Kingdom's decision on T-TIP and look forward to continuing our engagement with the European Union and our relations with the United Kingdom.

The problem is that without some clear wins for the EU, it will be very hard to sell the TAFTA/TTIP deal to Europeans and the Members of the European Parliament (MEPs) who must ratify the deal once it is finished. A report on Reuters is already pessimistic about TTIP's chances:

The historic divorce launched by Thursday's vote will almost certainly further delay substantial progress in the Transatlantic Trade and Investment Partnership (TTIP) talks as the remaining 27 EU states sort out their own new relationship with Britain, trade experts said on Friday.

With French and German officials increasingly voicing skepticism about TTIP's chances for success, the United Kingdom's departure from the deal could sink hopes of a deal before President Barack Obama leaves office in January.

"No free trade agreement should be concluded if it does not respect EU interests. Europe should be firm," Valls told members of the governing Socialist Party, adding "France will be vigilant about this."

"I can tell you frankly, there cannot be a transatlantic treaty agreement. This agreement is not on track," Valls said.

People across the continent have a greater awareness of trade deals than at any previous time. Any move to express renewed support for TTIP will be highly publicised and scrutinised across Europe. We therefore appeal to you to use this opportunity to heed public opinion and urgently withdraw the mandate for TTIP.

The UK probably does not care about the havoc Brexit is wreaking on TAFTA/TTIP, not least because it has its own huge problems in the area of trade. Once it leaves the EU, it will need to renegotiate all the trade deals that it currently enjoys as a result of being part of the European Union, as well as striking some new ones. Naturally, the most important of those would be with the US. Even if some kind of TAFTA/TTIP deal is achieved at some point -- possibly years down the line -- the UK will not be part of it. As a result, it needs to agree something with the US on its own.

That's not going be easy. A spokesperson for President Obama confirmed that the UK would not be getting any preferential treatment when it came to trade deals, and that it would have to wait its turn. As people are already pointing out, the UK's extremely weak negotiating position means that it is likely to end up with a really bad US deal:

Nick Dearden, director of Global Justice Now, said the "right-wing lurch of Brexit" could result in Britain signing up to "TTIP on steroids".

As well as its inability to haggle, there's another reason why the UK may sign up to something that is far worse than the current TAFTA/TTIP: the person seen as a likely successor to David Cameron as UK prime minister, Boris Johnson, thinks such a deal with the US would be an unalloyed boon. In 2014, he wrote a prophetic article in which he gushed as follows:

This pact is a massive potential win for humanity -- the closer economic union between two vast territories that share a tradition of democracy, free speech, pluralism: the Western values that are under threat in so many other parts of the world; and where almost everyone has English as a first or second language.

Trade between Europe and the US is already worth $4.7 trillion; this is the chance to go further. If the EU can't pull it off, we in Britain should offer to go first and do it ourselves.

It now looks increasingly likely that the UK will do precisely that. The big question is: will the US care?

from the speak-up dept

We've written plenty of times about ridiculous European plans to create a so-called "snippet tax" which is more officially referred to as "ancillary rights" (and is really just about creating a tax on Google). The basic concept is that some old school newspapers are so lazy and have so failed to adapt to the internet -- and so want to blame Google for their own failures -- that they want to tax any aggregator (e.g., Google) that links to their works with a snippet, that doesn't pay for the privilege of sending those publishers traffic. As you may remember, Germany has been pushing for such a thing for many, many years, and Austria has been exploring it as well. But perhaps the most attention grabbing move was the one in Spain, which not only included a snippet tax, but made it mandatory. That is, even if you wanted Google News to link to you for free, you couldn't get that. In response, Google took the nuclear option and shut down Google News in Spain. A study showed that this law has actually done much to harm Spanish publishers, but the EU pushes on, ridiculously.

As discussed a year ago, some in the EU Commission are all for creating an EU-wide snippet tax, and as ridiculous and counterproductive as that is, the Commission is about to make a decision on it, and the public consultation on the issue is about to close (it ends tomorrow). Thankfully, many, many different groups have set up nice and easy systems to understand and respond to the consultation -- which you should do. Here are just a few options:

There's also a good detailed discussion of why this snippet tax is the wrong solution from European copyright lawyer Remy Chavannes. Here's just a... um... snippet (that I didn't pay for):

In fact, there is precious little indication that the challenges currently being faced by press publishers are due to the lack of sufficiently broad intellectual property rights. And if insufficient IP rights are not a significant part of the problem, increasing IP rights is unlikely to be a significant part of the solution. At a recent conference in Amsterdam, speakers from publishers, academia, politics, civil society and the internet sector were in near-total agreement that a neighbouring right for publishers would solve nothing at best. It would seem more fruitful to investigate other ways in which the position and prospects of publishers of quality journalism can be increased, e.g. via subsidies, tax facilities, the partial repurposing of public broadcasting funds, or other measures that reflect the significant value to a democratic society of having a vigorous, free and independent press.

Implementation of a neighbouring right would bring significant uncertainty, costs and risks, not just to authors and publishers, but also to the eclectic group of platforms, intermediaries and other service providers that play a role in facilitating the publication, discovery and consumption of press content. Larger, existing broad-based platforms will be incentivised to reduce or remove service features that might trigger the new neighbouring right. New entrants are likely to be discouraged, particularly new entrants who want specifically to serve the market for finding and consuming press content. Depending on the scope of any neighbouring right, moreover, it could also negatively impact providers of social networks as well as providers of access, caching and hosting services. Increasing costs, complexity and uncertainty for such a broad category of service providers threatens the free flow of information and investment in – and availability of – innovative digital services, as well as the commercial prospects for publishers and authors.

Good stuff, and I urge you to read the whole thing -- and to respond to the consultation before the EU Commission destroys the link.

from the who-defines-what-hate-speech-is dept

It's easy to say that "hate speech" is bad and that we, as a society, shouldn't tolerate it. But, reality is a lot more complicated than that, which is why we're concerned about various attempts to ban or stifle "hate speech." In the US, contrary to what many believe to be true, "hate" speech is still protected speech under the First Amendment. In Europe, that's often not the case, and hate speech bans are more common. But, as we've noted, while it seems like a no brainer to be against hate speech, the vagueness in what counts as "hate speech" allows that term to be expanded over and over again, such that laws against hate speech are now regularly used for government censorship over the public saying things the government doesn't like.

So consider me quite concerned about the news out of the EU that the EU Commission has convinced all the big internet platform companies -- Google, Facebook, Twitter and Microsoft -- to agree to remove "hate speech" within 24 hours.

Upon receipt of a valid removal notification, the IT Companies to review such requests against their rules and community guidelines and where necessary national laws transposing the Framework Decision 2008/913/JHA, with dedicated teams reviewing requests.

The IT Companies to review the majority of valid notifications for removal of illegal hate speech in less than 24 hours and remove or disable access to such content, if necessary.

In addition to the above, the IT Companies to educate and raise awareness with their users about the types of content not permitted under their rules and community guidelines. The use of the notification system could be used as a tool to do this.

In other words, it sounds a lot like these companies have agreed to a DMCA-like notice-and-takedown regime for handling "hate speech." Let's be clear here: this will be abused and it will be abused widely. That's what happens when you give individuals the ability to remove content from platforms. Obviously, these companies are private companies and can set whatever policies they want on keeping up or removing content, but when they come to an agreement with the EU Commission about what they'll remove and how quickly, reasonable concerns should be raised about how this will work in practice, what definitions will be used to determine "hate speech," what kinds of appeals processes there will be and more. And none of that is particularly clear.

And, of course, very few people will raise these issues upfront because no one wants to be seen as being in favor of hate speech. And that's the real problem. It's easy to create rules for censorship by saying it's just about "hate speech," since almost no one will stand up and complain about that. But that opens up the door to all sorts of abuse -- whether in how "hate speech" is defined, as well as in how the companies will actually handle the implementation. Two major human rights groups -- EDRi and Access Now have already withdrawn from the EU Commission forum discussing all of this in protest of how these rules were put together:

Today, on 31 May, European Digital Rights (EDRi) and Access Now delivered a joint statement on the EU Commission’s “EU Internet Forum”, announcing our decision not to take part in future discussions and confirming that we do not have confidence in the ill considered “code of conduct” that was agreed.

Their main concern was that the whole thing was set up directly between the EU Commission and the internet companies behind closed doors -- and when you're talking about issues that impact human rights and freedom of expression, that needs to be done openly and transparently.

In short, the “code of conduct” downgrades the law to a second-class status, behind the “leading role” of private companies that are being asked to arbitrarily implement their terms of service. This process, established outside an accountable democratic framework, exploits unclear liability rules for companies. It also creates serious risks for freedom of expression as legal but controversial content may well be deleted as a result of this voluntary and unaccountable take down mechanism.

I recognize why many people may cheer on this move, thinking that it's a way to stop "bad stuff" from happening online, but beware the actual consequences of setting up an opaque process with a vague standard for pressuring platforms to censor content based on notices from angry people. If you don't think this will be abused in dangerous ways, you haven't been paying attention to the last two decades on the internet.